Maqasid Al-Shariah and Constitutions in Muslim Majority Countries: The

Maqasid al-Shariah and Constitutions in Muslim Majority Countries: The Egyptian Constitution as a Case Study Jasser Auda Al-Shatibi Chair of Maqasid Studies, International Peace College (South Africa), Director, Maqasid Institute (UK), Visiting Professor, Carleton University (Canada) Abstract This article proposes a common ground to bridge a serious political and social gap that is the result of a divide between two concepts, namely, the “Islamic state” versus the “civil state”. These two concepts appear in the constitutional language in terms of the “rules (ahkam) of the Shariah” versus the “principles (mabadi’) of the Shariah”, respectively. We have witnessed heated debates over the choice between these two prefixes in the post-revolution constitutions in Egypt, which is taken here as a case study. These debates reflected the deep division over how to answer the question of the relationship between Islamic and its law/Shariah and a modern nation state. By focusing on maqasid al-Shariah (higher objectives of the Shariah), I will show how “civil” and “Islamic” need not be contradictory or mutually exclusive. And I will show the same to be true for “rules” and “principles.” It will be argued that there is an area of intersection between what is “religious” and what is “civil,” and that sound Islamic juridical reasoning (ijtihad) in the area of legal texts should be based on the maqasid of the Shariah, which includes its principles. Thus, maqasid al-Shariah is presented as common ground between ideological extremes, a common ground that is much needed for the current struggle against tyranny and corruption. Introduction The status of the Shariah in the constitutions of Muslim-majority countries has recently been a subject of heated debate and the cause of political and social divisions.1 In Egypt, for example, especially since the January, 2011, revolution and the constitutional changes that followed it, there is a general agreement over two well-known concepts, but there are also deep divisions over their interpretation. That is, there is general agreement across the political spectrum that Egypt is a “civil state” (dawlah madaniyyah), and that Shariah is a/the “reference” (masdar) for legislation.2 However, the exact meanings of the two expressions “civil state” and “reference to the Shariah” are highly disputed. “Civil state” is interpreted by some as “secular state” (dawlah ‘ilmaniyah) and by others as “Islamic state” (dawlah islamiyyah).3 On the other hand, the “reference to the Shariah” means the “rules of the Shariah” (ahkam al-shariah) to some, but the “principles of the Shariah” (mabadi’ al-shariah) to others.4 Disputes along the above two division lines were exploited by authoritarian status quo regimes in favor of the currents of counter-revolution and authoritarianism.5 Ironically, status quo 1 ruling regimes, in the whole Arab world including Egypt, belong to none of the above extremes; they neither call for a “secular state” nor “Islamic state”, and they neither call for the “rules” of the Shariah nor the “principles” of the Shariah. Arab regimes in the form of military elites (such as the Egyptian Generals, in alliance with business and religious elites), or tribal elites (such as other “monarchs” and “emirs”) have been consistently closer to any method of interpretation that serves their material and political interests, in any case.6 That is why, as will be illustrated below, they oscillate between opposite positions and put on “Islamic” or “secular” masks based on what will usurp power towards their political ends. We witnessed how some Arab authoritarian regimes put on an “Islamic” mask at times of oppression of Islamic parties and groups, in order to ward off accusations that they are against Islam or helping Islam’s enemies. Their objective in these instances is to appeal to the masses at a time of an election or public protests. At other times, the same authoritarian regimes put on a “secular” mask, this time to appeal to secular/western powers as their allies and ideological extensions.7 The objective of this article is to illustrate that the apparent conflict between “secular state” and “Islamic state” is baseless, and that the concept of “ahkam or rules of the Shariah” and the “mabadi’ or principles of the Shariah”, is a false dichotomy, conceptually speaking. Thus, a common ground is proposed between these two concepts based on maqasid al-Shariah (higher objectives of the Shariah). In a maqasidi understanding, the “rules” and the “principles” of the Shariah should not be considered contradictory or mutually exclusive. This is because it will be argued that sound Islamic juridical reasoning (ijtihad) in the area of rules must be based on the maqasid of the Shariah, which includes its principles. This will be demonstrated according to a formal analysis of the methodology of al-ijtihad al-ta’leeli (reasoning via causes), and then according to many precedents from the well-established tradition of the Egyptian constitutional court. On the other hand, we will argue based on the above, that the nature of the Egyptian state, when it comes to Islam, should continue to include an area of intersection between what is “religious” and what is “civil”, and should not deal with these two circles as neither overlapping nor mutually exclusive. It will be evident, therefore, that ideological bias and propaganda is behind much of the conflicts around these concepts, rather than genuine political differences. Before analyzing the nature of the state and methods of reasoning and interpretation according to maqasid al-Shariah, the following basic concepts will be introduced, namely, Shariah, fiqh, and maqasid al-Shariah. The purpose of these definitions is to separate the divine truth, which all believers believe in, from human understanding and interpretations, which are subject to error and bias. It will be also shown how maqasid al-Shariah are essential to include in this discussion. 2 Differentiating between Shariah and fiqh Empirically speaking, “Shariah” is what defines how Islam is lived for a Muslim and therefore a major component of his/her identity and what they would like to see as a legitimate “source of legislation”.8 However, an important question is: What exactly is “Shariah”? And how do we differentiate between its immutable principles and interpretations that could be subject to differences of opinion that belong to “fiqh” (or understanding)? It is essential, in the context of legislation, to differentiate between the Arabic terms: Shariah and fiqh. They are often confused and both are inaccurately translated in English as “Islamic law”.9 However, “Islamic law” in Arabic is: “al-qanun al-islami”, which is a term that simply does not exist in the Islamic or Arabic legal or juridical terminology. However, the word Shariah is used in the Quran to mean a “revealed way”.10 On the other hand, the word fiqh is used in the Qur’an and hadith in various forms to refer to the process of understanding, comprehension, and gaining knowledge of Islam in general. Eventually, and since the end of the era of the imams of the Islamic schools of fiqh around the third Islamic century, the word fiqh has been typically defined as, “knowledge of practical rulings extracted from ‘detailed evidences’ (al-adillah al-tafseeliyyah, i.e. the verses of the Quran and the narrations of the hadith)”.11 Derived from the word “fiqh,” a faqih is someone with ‘understanding’ (fahm),12 ‘perception’ (tasawwur),13 and ‘cognition’ (idrak).14 The term “faqih” is never used for God15 because fiqh (“understanding”) is an attribute of deficiency, rather than an attribute of perfection which defines God. On the other hand, the term Al-Shari’ (‘The Legislator’) refers to God himself,16 and could not be used for humans, except for the Prophet, when he ‘conveys a message from God’.17 [a bit more of the “because” for the assertions in this sentence, paralleling the precedeing sentence, would be nice] Despite the obvious difference between the divine origin of the Shariah and the human origin of fiqh, research in “Islamic law” within Islamic studies and oriental studies often confuse them. In Islamic studies, the “implementation of the Shariah” is confused with the implementation of specific fiqhi opinions that are subject to differences of opinion.18 In traditional orientalist studies, Shariah and fiqh were sometimes considered “synonymous”.19 However, blurring the line between Shariah and fiqh does not allow the changeable parts of the rules to ‘evolve’ in interpretation with the change of place and time. Moreover, it gives way to claims of “immutability” in human juridical ijtihad/opinions. Historically, these claims have resulted in two serious phenomena, namely, mutual accusations of heresy between schools of fiqh and resistance of renewal in the Islamic rules. Mutual accusations of heresy or apostasy, not just error or sin, have frequently occurred between groups of scholars who had different opinions about what they held as fundamental/essential/divine parts of the law. A large number of bloody conflicts throughout the Islamic history were instigated by such accusations between followers of different madhāhib. One example is the violent conflict between the Asharite and Mutazili schools of thought during the Abbasids reign, in the eighth century CE. A second 3 example is the fierce battles, in Khurasan (1000 CE), Nisapur (1159 CE), Esfahan (1186 CE), and Jerusalem (1470 CE), between followers of the Shafi˒i and Hanafi schools of law over their minor discrepancies. In Khurasan, around 1000 CE, the battle started after the Caliph, impressed by Abu Hamid al-Ghazali’s knowledge, decided to change the official school of law in courts from the Hanafi to the Shafie school, to which al-Ghazali belonged. Fiqhi differences between the two schools might explain the seeming cause of the conflict, but it is obvious that politics of power played a key role.

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